1. This Rule was obtaintd on grounds Nos. 4 and 6 of the patition which are as follows:
2. For that on a valid and correct construction of law on the subject the learned Subordinate Judge ought to have held that the suit was beyond the peouniary jurisdiction of the learned Munsif.
For that the learned Munsif having heard all the evidence and arrived at his own finding thereon, the learned Subordinate Judge has erred in law and aobed without jurisdiction in not expressing his definite conclusions thereupon.
3. The suit was one for redemption and the Munsif before whom it was instituted proceeded by way of a preliminary issue to decide the question whether he had the pecuniary jurisdiction to try it. Evidenoe was led on both sides and upon it he came to the , conclusion that the debt due by plaintiff to defendant was over Rs. 1,000 and that, consequently, the suit was beyond his jurisdiction. He accordingly returned the plaint for presentation to the proper Court. Plaintiffs appealed and the learned Subordinate Judge reversed the order and remitted the case to the lower Court for trial on the merits.
4. He pointed out that a redemption suit comes under Section 7, Clause IX of the Court-Fees Act and the plaint has to be Stamped with Court-fees payable on the principal sum assured. But Section 8 of the Suits Valuation Act does not cover redemption suits, so that valuation for the purpose of jurisdiction does not necessarily follow valuation for the purpose of Court-fees. The Allahabad and Madras High Courts say 'that Section 8 does not lay down either that the valuation for the purpose of jurisdiction must necessarily be different from that forthe purpose of Court
5. The learned Judge further observed that he saw no practical difficulty from Order XXXIV, Rules 7 and 8 of the Code of Civil Procedure because the Court would not direct the plaintiffs to pay a certain sum but only direct that if a certain sum was paid within a certain time plaintiff's would have a certain relief in respeob of the mortgaged property, and if they failed they would be debarred from getting it in future. If no payment were made the mortgagee would be entitled to ask for the sale of the property but that would be no part of the decree though it oould follow from the decree incidentally.
6. The learned Judge then proceeded to make some observations on the evidenoe recorded by the Munsif, adversely criticising his findings though not definitely disagreeing with them.
7. The learned Vakil who has appeared in support of the Eule urges that the procedure adopted by the Court of Appeal below was erroneous and that the learnnd Judge should have oome to a definite finding on the evidence.
8. As regards the second contention, we are of opinion that though the learned Judge may possibly have carried his criticisms a little too far it was not his intention to consider the evidenoe except from the point of view of the Munsif's jurisdiction and he was careful to guard against the imputation of having prejudged the case by saying: 'it is not my intention to thrust my views upon the Court which would have to try the case and the Court should try it uninfluenced by, my observations.
9. We think, however, that as the facts stand, the learned Judge was in error in remitting the case to the Munsif for trial on the merits.
10. He has relied on the case of Kedar Singh v. Matabadal Singh 1 Ind. Cas. 703 : 31 A. 44; A.W. (1908) 276 : 5 A.L.J. 713, which follows earlier cases of that Court, as an authority for the proposition that the value for purposes of jurisdiction of a suit for redemption of a mortgage is the amount of the principal mortgage-money and not the value of the property mortgaged and that the law has not been affected by the passing of Act VII of 1887, Section 8.
11. That view was also taken by the Madras High Court in the case of Jallaldeen v. Vijaya-swami 28 Ind. Cas. 629 : 39 M. 447 : 20 M.L.J. 89; (1915) M.W.N. 239.
12. It is said in these cases that Section 8 of the suits Valuation Act does not cover redemption suits so that valuation for the purpose of jurisdiction does not necessarily follow valuation for the purpose of Court-fees nor will valuation for the purpose of jurisdiction necessarily be different from that for the purpose of Court-fees. Therefore, the law as laid down in the earlier cases is unaffected by the Suits Valuation Act.
13. With great respect to the learned Judges who decided these Cases, we cannot but feel considerable doubt as to the correctness of these decisions. If the Legislature had not contemplated a change in the law it is not easy to understand why redemption suits should have been expressly excluded from i the operation of Section 8 of the Suits Valuation Act. The Section does not say that the value determinable for the purpose of jurisdiction is the value determinable for the purpose of the initial payment of Court-fees. We are, therefore, inclined to the view that jurisdiction will depend not on the amount assured but on the amount ultimately found to be due.
14. Our attention was drawn to the case of Rameswar Mahton v. Didu Mahton 21 C. 350 : 10 Ind. Dec. (N.S.) 997, where it was held that in a suit for possesssion with mesne profits the Munsif has jurisdiction to ascertain the mesne profits and to give effect to the order made in the decree notwithstanding that the amount of such.mesne profits when added to the value of the suit might come to a sum in excess of the hearing jurisdiction of his Court.
15. That case was considered and distinguished in Golap Singh v. Indra Kumar Hajra Ind. Cas. 86 : 9 C.L. 13. 367 : 13 C.W.N. 493 : 5 M.L.T. 360 : 954 : 6 C.L.J. 255 : 11 C.W.N. 1133. At p. 377 it was pointed out that' the amount of mesne profits for which the Munsif made a decree had accrued entirely after the institution of the suit and depended upon the length of time during which the defendant might manage to keep the plaintiff out of possession in spite of the decree in his favour.
16. The decision on principle too which had been doubted in Ijjatulla v. Chandra Mohan Banerjee 34 C, was disapproved.
17. It is also pointed out (at p. 374) that the provision of the Suits Valuation Act only shows that for purposes of jurisdiction the value of the suit must be taken to be determined by the value determinable for the completion of Court-fees. But this does not conclude the question whether a Court of restricted pecuniary jurisdiction is competent to make a decree in a suit for accounts valued at less than Rs. 1,000 for an amount in excess of Rs. 1,000 which is the pecuniary limit of its jurisdiction.
18. It may be conceded that a suit should be instituted in the Court cf the lowest grade competent to try it (section 15, Code of Civil Procedure). Competency means jurisdiction and the competency of a Court depends upon the nature of the suit and upon its own pecuniary jurisdiction. That jurisdiction must be determined with reference to the various Acts constituting the Courts and the question of valuation by reference to the Court-Fees and Suits Valuation Act.
19. The jurisdiction of the Munsif here is limited to the trial of suits the value of which does not exceed Rs. 1,000. Now, prima facie it is the plaintiff's claim which determines jurisdiction and the jurisdiction continues whatever the event unless a different principle comes into operation to prevent such a result or to make the proceedings from the first abortive. It is precisely such a contingency which has arisen in the present case. The evidence recorded by the learned Munsif satisfied him that the debt due by the plaintiffs on the bond was more than Rs. 1,000. He, therefore, held that the suit was beyond his pecuniary jurisdiction. In our judgment that view was correct both in law and on principle.
20. We are further of opinion that the learned Judge has failed to appreciate the mandatory effect of Order XXXIV, Rules 7 and 8. The Court must declare the amount due at the date of the decree and direct its payment within a certain time. If the money is not paid, the Court must, on defendant's application under Rule 8(4), pass a decree for the sale of the property. It is difficult to understand, therefore, how such an order would 'be no part of the decree, though it would follow from the decree incidentally.
21. The substance of the matter is that if the Court has no jurisdiction to try the suit, it has no jurisdiction to make the decree. As explained in Golap Singh's Case (4), cited above, at page 375: 'if a Court of limited pecuniary jurisdiction took cognizance of a suit in which the sum claimed was larger than the amount over which the Court had jurisdiction and judgment it might give would be void.
22. The result, therefore, is that the rule is made absolute with costs two gold mohurs and the order of the lower Appellate Court discharged. The plaint will be returned to the plaintiff for presentation to a Court of oompetent jurisdiction.